Delhi District Court
Smt. Paramjit Kaur vs Smt. Santra Devi on 15 July, 2014
IN THE COURT OF SHRI RAJ KUMAR: ADDL. DISTRICT
JUDGE17: TIS HAZARI COURTS : DELHI
Suit No. 174/14 (Old Suit No. 212/08)
Unique Case ID No. 02401C0721762008
1. Smt. Paramjit Kaur
Sh. Surbir Singh
2. Sh. Surbir Singh
S/o Late Sardar Uttam Singh
Both R/o 5C/45, New Rohtak Road,
New Delhi110005. ........... Plaintiffs.
VERSUS
1. Smt. Santra Devi
W/o Late Sh. Madan Pal Khari,
2. Sh. Hem Prakash
s/o Late Sh. Madan Pal Khari,
3. Sh. Devesh
S/o Late Sh. Madan Pal Khari,
4. Smt. Urmila
W/o Sh. Sunil
D/o Late Sh. Madan Pal Khari,
Suit No. 174/14 (Old Suit No. 212/08) Page No. 1/47
5. Smt. Parmila
S/o Sh. Tejbir
D/o Late Sh. Madan Pal Khari,
6. Ms. Geeta
D/o Late Sh. Madan Pal Khari,
7. Ms. Mamta
D/o Late Sh. Madan Pal Khari,
All R/o H39, Gali no. 3,
Shastri Park, Delhi - 110 053 ......... Defendants.
Date of institution of the suit : 13.05.2008
Date on which order was reserved : 05.07.2014
Date of decision : 15.07.2014
SUIT FOR POSSESSION, DECLARATION AND PERMANENT
INJUNCTION
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the plaintiff no. 1 is the registered owner of the property bearing no. H39, Gali no.3, Shastri Park, Delhi53 (hereinafter referred to as the suit property duly shown in red colour in the site plan annexed with the plaint) by virtue of the GPA, Agreement to Sell, Affidavit, SPA, Will and registered receipt Suit No. 174/14 (Old Suit No. 212/08) Page No. 2/47 for an amount of Rs. 52,000/. It has been further stated that the husband of the plaintiff no. 1, who is the plaintiff no. 2 herein, was constructing the boundary wall of the said plot in the 1st Week of June, 2000 when the labourers of the plaintiffs were threatened by the accomplices of Sh. Madan Lal Khari with a country made pistol and with a ulterior motive to take the unlawful possession of the said plot. It has been further stated that a complaint to this effect was lodged with PS Seelampur on 10.06.2000. It has been further stated that on 17.06.2000 at about 4 pm, Sh. Madan Pal Khari himself wanted to illegally encroach upon the said plot, when the plaintiff no. 2 objected, he was threatened with dire consequences. It has been further stated that the plaintiff no. 2 called upon Sh. Madan Pal Khari to take away his cow which was kept by him in the plot of the plaintiff no.1. It has been further stated that a DD no. 50B dated 17.06.2000 was duly lodged by the plaintiffs in this regard. It has been further stated that the plaintiff no. 2 put a lock on the gate after constructing the boundary wall, but Sh. Madan Pal Khari and his son Sh. Hemu threatened to take forcible possession of the plot in question. It has been further stated that a complaint dated 20.06.2000 was duly acknowledged by the office of the DCP etc. in this regard. It has been further stated that as per the Khatoni for the year 198687, Sh Dharampal has been shown as the owner and in possession of Khasra no. 1 etc. 42/2 min. of Village Ghonda, Chauhan Khadar, Delhi. It has been further Suit No. 174/14 (Old Suit No. 212/08) Page No. 3/47 stated that Sh. Laxman S/o Sh. Ghoru, Sh. Rampal S/o Sh. Nathu and Sh. Om Pal S/o Sh. Rattan Singh had executed a registered GPA in favour of Sh. Dharampal and as per the Khatoni Sh. Dharampal has been shown the Bhumidar of the said Khasra. It has been further stated that the documents in favour of the plaintiff no. 1 were executed by Sh. Dharampal, who also executed a Will dated 20.01.1989. It has been further stated that Sh. Dharampal expired on 25.01.2008 and as such, the plaintiff no. 1 has become the absolute owner of the suit property. It has been further stated that Sh. Madan Pal Khari in collusion with one Sh. Shakil got filed a suit for Permanent Injunction in which Sh. Shakil claimed himself to be owner of the said property. It has been further stated that area of the plot in the said suit was mentioned as 200 sq. yards. It has been further stated that the said suit was filed on 17.06.2000 in which Sh. Madan Pal Khari got an order dated 20.06.2000 in his favour to the effect that Sh. Madan Pal Khari was the tenant under Sh. Shakil in the suit property. It has been further stated that the said suit bearing no. 311/2002 was ultimately dismissed on 30.05.2003 because it was a collusive suit in between late Sh. Madan Pal and Sh. Shakil. It has been further stated that Sh. Madan Pal Khari also instituted a suit for Permanent Injunction against the plaintiff no.2 herein, which is pending in the Court of Sh. Lal Singh, the then Ld. ADJ, Delhi. It has been further stated that Sh. Madan Pal Khari expired on 07.01.2007 and the Suit No. 174/14 (Old Suit No. 212/08) Page No. 4/47 defendants are the legal heirs of the deceased Sh. Madan Pal Khari in the present suit. It has been further stated that ever since 20.01.1989, the plaintiffs were in possession of the said plot by virtue of the title documents executed by the previous owner Sh. Dharampal. It has been further stated that after the dismissal of the suit filed by Sh. Shakil Ahmad, the defendants have constructed ground floor, incomplete first floor on 1/3rd portion of the western side of the said plot. It has been further stated that the defendants are the rank trespassers and unauthorized occupants of the suit property belonging to the plaintiffs. It has been further stated that after the death of Sh. Dharampal, the plaintiffs have the right to recover the possession of the said plot from the defendants and hence, the present suit.
2. On the basis of the abovesaid allegations as contained in the plaint, the plaintiffs have prayed for a decree of declaration to the effect that the plaintiff no. 1 is the absolute owner of the suit property. The plaintiffs have also prayed for a decree of possession with respect to the suit property. The plaintiffs have also prayed for a decree of Permanent Injunction restraining the defendants and their agents etc. from creating any third party interest in the suit property. The plaintiffs have also prayed for the costs of the suit.
3. Written statement has been filed on record by the defendants stating therein that the plaintiffs have not come to the Court with clean Suit No. 174/14 (Old Suit No. 212/08) Page No. 5/47 hands. It has been further stated that the plaintiffs have filed the present suit without any title deeds in their favour with a view to grab the suit property. It has been further stated that the documents dated 20.01.1989, which are the GPA, Agreement to Sell, Affidavit, Will etc. are merely notarized and not registered. It has been further stated that even the entry number of the notary public has not been mentioned on the abovesaid documents. It has been further stated that the said documents cannot confer any title with respect to the suit property upon the plaintiff no. 1 and as such, the suit of the plaintiffs is liable to be dismissed. It has been further stated that the plaintiffs have merely filed only one registered receipt dated 20.01.1989 for a sum of Rs. 52,000/, but the registered receipt only cannot confer any title upon the plaintiff no.1. It has been further stated that moreover, the receipt says that the amount was given in cash, whereas the agreement to sell states that the amount was given by way of cheque and as such, there is no corelation in between the said documents. It has been further stated that there is no sale deed in favour of the plaintiffs and as such, the plaintiff no. 1 cannot claim herself to be owner of the suit property. It has been further stated that the Will dated 20.01.1989 has been executed only by Sh. Dharampal, but the rest of the documents in favour of the plaintiff no. 1 have been executed by others as well such as Sh. Laxman, Sh. Rampal and Sh. Om Pal, which goes to show that there were/ are other owners of the suit property as well. It has Suit No. 174/14 (Old Suit No. 212/08) Page No. 6/47 been further stated that neither the Will is registered, nor any Probate has been obtained by the plaintiff no. 1 with respect to the said Will and as such, the suit of the plaintiffs is liable to be dismissed. It has been further stated that even the Khatoni of the year 198687, does not disclose that the executants of the documents in favour of the plaintiffs were the owners and in possession of the suit property.
4. The defendants have taken the stand that they are in possession of the suit property since June, 1970. It has been further stated that the suit property was given by one late Sh. Bhure Singh to the father inlaw of the defendant no.1 (Grandfather of the defendants no. 2 to 7) namely late Sh. Rumal Singh. It has been further stated that late Sh. Rumal Singh and late Sh. Bhure Singh were having friendly relations. It has been further stated that late Sh. Bhure Singh, being a farmer was having many plots in Delhi and being in friendly relationship with Sh. Rumal Singh, he gave the suit property to Sh. Rumal Singh for running his milk dairy or any other business in June, 1970 for maintaining his family members. It has been further stated that however, no writing was reduced on paper in this regard. It has been further stated that in accordance with the wish of late Sh. Bhure Singh, late Sh. Rumal Singh took over the possession of the suit property, raised the boundary wall and necessary construction for the purposes of running of the milk dairy at the suit property. It has been further stated that after the death of late Suit No. 174/14 (Old Suit No. 212/08) Page No. 7/47 Sh. Rumal Singh, Sh. Madan Pal Khari (Husband of the defendant no. 1 and father of the defendants no. 2 to 7) became the head of the family and he started the business of milk dairy in the suit property. It has been further stated that since June, 1970, neither any of the legal heirs of late Sh. Bhure Singh, nor any other person, nor the plaintiff no.1 ever approached late Sh. Rumal Singh for demanding the possession of the suit property. It has been further stated that before June, 2000, none came to the suit property for demanding the possession of the suit property or claiming any right therein. It has been further stated that thus, the suit property was being enjoyed by late Sh. Rumal Singh and late Sh. Madan Pal Khari in the capacity of an owner of the suit property. It has been further stated that the plaintiff no. 2 alongwith his associates namely Sh. Shakil Ahmad got some false and fabricated documents in their favour with a view to grab the suit property. It has been further stated that the plaintiff no. 2 and Sh. Shakil Ahmad many a times interfered in the peaceful possession of the defendants in the suit property. It has been further stated that the said Sh. Shakil Ahmad on the basis of the fabricated documents filed a civil suit in the month of June 2000 against the husband of the defendant no.1 falsely showing him to be a tenant in the suit property. It has been further stated that Sh. Shakil Ahmad in the said suit falsely claimed himself to be owner of the suit property. It has been further stated that the said suit was ultimately dismissedindefault. Suit No. 174/14 (Old Suit No. 212/08) Page No. 8/47 It has been further stated that the plaintiff no. 2 with a view to grab the suit property and in collusion with the police officials of PS Seelampur falsely claimed that late Sh. Madan Pal Khari and the defendants after his death were not in possession of the suit property and he got lodged a false complaint in this regard. It has been further stated that on the basis of the false complaint lodged by the plaintiff no. 2, late Sh. Madan Pal Khari was arrested by the police in a Kalandera U/s 107/151 of the Cr.P.C. and a false case U/s 452/34 of the IPC vide FIR no. 280/2000 was also got lodged against late Sh. Madan Pal Khari. It has been further stated that however, due to the timely intervention of the defendants and some respectable persons of the society, the plaintiff no. 2, Sh. Shakil Ahmad and the police as well could not succeed in their illegal designs and the defendants were able to protect their possession. It has been further stated that the husband of the defendant no. 1 had given the complaints to the Higher Authorities of the Police on 19.06.2000, 20.06.2000 and 10.07.2000. It has been further stated that some criminal minded persons and said Sh. Shakil Ahmad came at the suit property on 05.06.2000 and at gun point, took the forcible signatures of late Sh. Madan Pal Khari on blank papers, blank stamp papers, printed rent receipt and on some written papers. It has been further stated that late Sh. Madan Pal Khari had given a police complaint in this regard on 05.06.2000. It has been further stated that late Sh. Madan Pal Khari was having the apprehension Suit No. 174/14 (Old Suit No. 212/08) Page No. 9/47 of forcible dispossession and as such, he filed a suit for Permanent Injunction which is pending adjudication. It has been further stated that the Local Commissioner was appointed in the said suit filed his report after visiting the suit property in the said suit. It has been further stated that when late Sh. Bhure Singh had given the plot to late Sh. Rumal Singh, late Sh. Rumal Singh was residing in property no. H42, Gali no.3, Shastri Park, Delhi which is situated just opposite the suit property. It has been further stated that the said property bearing no. H42, Gali no. 3, Shastri Park, Delhi was later on sold by the husband of the defendant no.
1. It has been further stated that the plaintiff no. 2 and the said Sh. Shakil Ahmad are the associates and land grabbers. It has been further stated that in the written statement filed on record by the plaintiff no. 2 herein in the suit bearing no.140/06 pending before the Court of Sh. Lal Singh, the then Ld. ADJ, Delhi, the plaintiff no. 2 has called himself to be the owner of the suit property, whereas in the present suit, plaintiff no. 1 has stated to be owner of the suit property. It has been further stated that thus, the documents filed by the plaintiffs are forged and fabricated. It has been further stated that the defendants have become the owners of the suit property by way of adverse possession. It has been further stated that from the perusal of the plaint, it is revealed that late Sh. Madan Pal Khari was in possession of the suit property alongwith his cows/ cattles and as such, the present suit is not maintainable. It has been further stated that Suit No. 174/14 (Old Suit No. 212/08) Page No. 10/47 the suit property has not been valued properly for the purposes of court fees and jurisdiction because the circle rates of the properties in the area where the suit property is situated is Rs. 16,000/ per sq. meter and as such, the suit property is of the value of more than Rs. 35 Lacs approximately. It has been further stated that the plaintiff no. 2 has been unnecessarily added as a party in the present suit.
5. On merits as well, the defendants have reiterated their abovesaid stand. The defendants have denied that the plaintiff no.1 is the registered owner of the suit property. The defendants have taken the stand that all the police complaints lodged by the plaintiffs are false and fabricated. The defendants have admitted the filing of the suit by Sh. Shakil Ahmad, but the defendants have taken the stand that Sh. Madan Pal Khari, being uneducated could not understand the contents of the plaint. It has been further stated that Sh. Madan Pal Khari also could not understand the arguments advanced by the Advocate of Sh. Shakil Ahmad and as such, the orders were passed by the Ld. Vacation Judge. It has been further stated that Sh. Madan Pal Khari was never asked as to whether he was a tenant in the suit property or not. The defendants have stated that 1/3rd portion on the western side of the suit property is completely constructed. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with costs.
Suit No. 174/14 (Old Suit No. 212/08) Page No. 11/47
6. Replication has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement filed by the defendant. In the replication, the plaintiffs have admitted that the documents filed by them are notarized and not registered, but the plaintiffs have taken the stand that the payment receipt is registered which confers a title in respect of the suit property. It has been further stated that late Sh. Dharampal was the absolute owner of the property in question, but by way of abundant caution, the signatures of other coowners of the remaining properties were also taken on the documents so that the co owners of the other properties may not raise any objection. It has been further stated that registration of the Will is not essential and Probate is not required in Delhi. The plaintiffs have denied that the defendants are in possession of the suit property since June 1970 or that the suit property was given by late Sh. Bhure Singh to late Sh. Rumal Singh. It has been further stated that it is a part of judicial record as to who is the lawful owner of the suit property. It has been further stated that the plaintiff no. 2 being the husband of the plaintiff no. 1 claimed himself to the owner of the suit property in suit bearing no. 140/06 pending in the Court of Sh. Lal Singh, the then Ld. ADJ, Delhi.
7. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 17.10.2008. Suit No. 174/14 (Old Suit No. 212/08) Page No. 12/47
1) Whether the suit has not been properly valued for the purpose of court fees and jurisdiction?(OPD)
2) Whether the suit is liable to be dismissed under Order 7 R 11 CPC?(OPD)
3) Whether the defendants are the owners of the suit property by way of adverse possession?(OPD).
4) Whether the plaintiff no. 1 is entitled to the declaration as an absolute owner of the suit property?(OPP).
5) Whether the plaintiffs are entitled to the decree of possession of the suit property?(OPP).
6) Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for in the suit?(OPP)
7) Relief.
EVIDENCE :
8. The plaintiffs have examined Sh. Surbir Singh i.e. plaintiff no. 2 and the husband of the plaintiff no.1 as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record his evidence by way of affidavit Ex. P1, Special Power of Attorney dated 13.03.2009 as Ex. PW1/1, General Power of Attorney dated 20.01.1989 as Ex. PW1/2, Agreement dated 20.01.1989 as Ex. PW1/3, Special Power of Attorney Suit No. 174/14 (Old Suit No. 212/08) Page No. 13/47 dated 20.01.1989 as Ex. PW1/4, Affidavit dated 20.01.1989 as Ex. PW1/6, payment receipt dated 20.01.1989 as Ex. PW1/7, Will dated 20.01.1989 as Ex. PW1/8, Original death certificate as Ex. PW1/9, site plan as Ex. PW1/10, complaint dated 10.06.2000 as Ex. PW1/11, original DD as Ex. PW1/12, complaints dated 20.06.2000 as Ex. PW1/13 to Ex. PW1/15, complaint dated 18.08.2000 as Ex. PW1/16, certified copy of Khatoni as Ex. PW1/17 and certified copies of the suit and orders as Ex. PW1/18 (colly).
9. In the crossexamination, PW1 states that the plaintiff no. 1 signed the SPA Ex. PW1/1 at Tis Hazari Court, Delhi. PW1 further states that he does not remember the date, month for signing the SPA Ex. PW1/1, but she signed the same in the year 2009 in the presence of Sh. Ashok Kumar. PW1 further states that the stamp paper on which Ex. PW1/1 was written was purchased by him. PW1 denies the suggestion that no SPA was executed by the plaintiff no.1 in his favour. PW1 denies the suggestion that he cannot identify the thumb impressions of Sh. Dharampal, Sh. Laxman, Sh. Ram Pal and Sh. Om Pal. PW1 denies the suggestion that the said persons had not put the thumb impressions in his presence on the said documents. PW1 denies the suggestion that the said executants had received a sum of Rs. 15,000/ from the plaintiff no.1. PW1 admits it to be correct that he had not put his signatures on the said documents. PW1 further states that he along with the draftsman had Suit No. 174/14 (Old Suit No. 212/08) Page No. 14/47 visited the site for preparation of the site plan Ex.PW1/10. PW1 further states that earlier, along with his son, he went to the site but there was scuffle with Sh. Hem Prakash, his wife and with his sister. PW1 further states that the police was called and the matter was amicably settled. PW1 further states that he does not remember as to whether any signatures were taken by the local police regarding the scuffle. PW1 denies the suggestion that the plaintiff no.1 has not become the owner of the suit property on the basis of the Will dated 20.01.1989. By way of volunteer, PW1 states that before the death of Sh. Dharam Pal, the plaintiff no.1 had become the owner of the suit property on the basis of the documents Ex.PW1/2 to Ex.PW1/8 executed on 20.01.1989. PW1 denies the suggestion that he had not put the lock on the gate after construction of the boundary wall on the suit property. PW1 further states that he cannot tell as to how many sisters Sh. Dharam Pal had. PW1 further states that he does not know as to whether, Ms. Neemati, Ms. Angoori, Ms. Bharamwati are the sisters of Sh. Dharam Pal or not. PW1 further states that he had brought with him the letter written by Sh. Madan Pal Khari in the Court on 08.07.2010 and the same was exhibited as Ex.PW1/D1. PW1 denies the suggestion that Ex.PW1/D1 has been fabricated by him. PW1 further states that the said letter Ex.PW1/D1 was handed over to him by Sh. Madan Pal Khari. PW1 further states that he cannot tell as to what is the circle rate of the suit property. Suit No. 174/14 (Old Suit No. 212/08) Page No. 15/47
10. The plaintiffs have examined Sh. Mahender Singh as PW1 (wrongly numbered as PW1) and this witness, in his evidence by way of affidavit has stated that he is an eye witness to the transaction in between the plaintiff no.2 and Sh. Dharam Pal. This witness has stated that the documents of the said property were executed at Seelam Pur and the consideration amount was paid by cheque to the seller.
11. In the cross examination, Sh. Mahender Singh has stated that he does not know the property number with regard to which, the present suit has been filed. This witness further states that the sale transaction with regard to the suit property had taken place about 2526 years ago in between his namely Sh. Nanua and Sh. Dhannu. This witness further states that initially the talks with regard to the transaction had taken place at the home and the writing work, regarding the execution of the documents had taken place at Seelam Pur. This witness further states that he had not signed any document in the office of the SubRegistrar at Seelam Pur.
12. The plaintiffs have further examined Sh. Ravi Kumar, LDC from Record Room Civil, Tis Hazari courts as PW2 and this witness brought the file of the suit bearing no. 311/2002 titled as Sh. Shakeel Vs. Sh. Madan Pal Khari. This witness exhibited the certified copy of the plaint and the orders dated 20.06.2000 in the said suit as Ex.PW2/A and Ex.PW2/B. Suit No. 174/14 (Old Suit No. 212/08) Page No. 16/47
13. This witness has not been cross examined by the defendants.
14. Sh. Dharmender Kumar, Asstt. Ahlmad from the court of Ms. Bhawani Sharma, Ld. MM, Karkardooma Courts Delhi has been examined by the plaintiffs as PW2(wrongly numbered as PW2). This witness exhibited the certified copy of the first sheet of the charge sheet filed in FIR no. 280/2000, PS Seelam Pur, U/s 323/452/ 34 IPC as Ex.PW2/1 and the certified copy of the statement of PW1 as Ex.PW2/2.
15. This witness has also not been cross examined by the defendants.
16. Ct. Naveen from the court of Ld. SEM, Seelam Pur, Delhi has been examined by the plaintiffs as PW4 and this witness brought the record of DD no. 19 B dated 21.06.2000, PS Seelam Pur, titled as State Vs. Madan Pal Khari U/s 107/151 of the Cr.PC. This witness placed on record the photocopy of the proceedings of the case running into eight pages as Ex.PW4/A collectively.
17. PW4 has also not been cross examined by the defendants.
18. The plaintiffs have further examined Sh. Bilochan Prasad, Asstt. Record Room Sessions, Tis Hazari Courts, Delhi as PW5 and this witness placed on record the copy of the plaint in Suit bearing no. 89/2004, titled as Madan Pal Khari Vs. Shakil Ahmed as Ex.PW5/A.
19. PW5 has also not been cross examined by the defendants.
20. Sh. Harak Singh, Record Clerk, Oriental Bank of Commerce Suit No. 174/14 (Old Suit No. 212/08) Page No. 17/47 has also been examined by the plaintiffs and this witness has stated that the record of the account no. 2738, of Ms. Paramjeet Kaur, cheque no. 356466 dated 23.01.1989 for Rs. 52,000/ was not maintained as it was 23 years old.
21. The next and the last witness examined by the plaintiffs is Ms. Janki, LDC from the office of SubRegistrar, Seelam Pur, Delhi and this witness exhibited the copy of the registered receipt as Ex.PW1/7.
22. PW6 has also not been cross examined by the defendants.
23. The defendants have examined Sh. Manoj Kumar, LDC from Record Room Sessions, as DW1 and this witness placed on record the certified copies of the affidavits and the judicial proceedings of the suit bearing no. 256/2008, titled as Madan Pal Khari Vs. Shakil Ahmed and ors. DW1 placed on record the certified copy of the evidence by way of affidavit of Sh. Madan Pal Khari as Ex.DW1/1, certified copy of the affidavit of Sh. Bhagwati Prasad as Ex.DW1/2, Certified copy of the cross examination of Sh. Bhagwati Prasad as Ex.DW1/3, certified copy of the ration card of Sh. Bhagwati Prasad as mark A, certified copies of the affidavit, the cross examination and election card of Sh. Chottu Ram as Ex.DW1/4, Ex.DW1/5 and Ex.DW1/6, certified copies of the affidavit, cross examination and ration card of Sh. Baljeet Singh as Ex.DW1/7 to Ex.DW1/9 respectively, certified copies of the affidavit and cross examination of Sh. Hari Gupta as Ex.DW1/10 and Ex.DW1/11 Suit No. 174/14 (Old Suit No. 212/08) Page No. 18/47 respectively, certified copies of the affidavit, cross examination and ration card of Sh. Sant Ram as Ex.DW1/12 to Ex.DW1/14 respectively, certified copies of the affidavit, cross examination and identity card of Sh. Brij Pal as Ex.DW1/15 to Ex.DW1/17 respectively, certified copy of the examination in chief and crossexamination of Sh. S.S. Jain, Advocate as Ex.DW1/18 and Ex.DW1/19, certified copy of the election card of Sh. Prem Prakash Khari as Ex.DW1/20, certified copies of the orders dated 03.07.2009 as Ex.DW1/21.
24. DW1 has not been cross examined by the plaintiffs.
25. The defendants have further examined Sh. Kanhaiya Lal, LDC from Record Room, Criminal, Karkardooma Courts, Delhi as DW2 and this witness brought in the Court the file of the case titled as State Vs. Madan Pal, arising out of the FIR no. 280/2000, PS Seelam Pur, U/s 323/452/34 IPC decided by the Court Sh. Dharmendra Rana, Ld. MM, Karkardooma Courts, Delhi on 14.05.2012. He has placed on record the certified copy of the statement of Sh. Girish Kumar as mark A, certified copy of his cross examination as Ex.DW1/1, certified copy of the statement u/s 161 of the Cr.PC of Sh. Hari Charan as mark B, certified copy of his crossexamination as Ex.DW2/2, certified copy of the statement u/s 161 of the Cr.PC of Sh. Ram Pal as mark C and the certified copy of his cross examination as Ex.DW2/3, certified copies of the GPA, agreement, affidavit, SPA, receipt and Will collectively as Suit No. 174/14 (Old Suit No. 212/08) Page No. 19/47 mark D, certified copy of the judgment and orders dated 14.05.2012 as Ex.DW2/4.
26. DW2 has not been cross examined by the plaintiffs.
27. The defendants have further examined defendant no.2 Sh. Hem Prakash S/o Late Sh. Madan Pal Khari as DW3. In his evidence by way of affidavit filed on record as Ex.D3, this witness has reiterated and reaffirmed the stand as taken by the defendants in the written statement. He has filed on record the SPA in his favour dated 16.09.2013 as Ex. DW3/1; Certified copy of the report of Ld. LC is Ex. DW3/2; Certified copy of the complaint dated 05.06.2000 is Ex. DW3/3; Certified copy of the ration card is Ex. DW3/4; Certified copy of the election card of the father of DW1 is Ex. DW3/5; Certified copy of the complaint dated 19.06.2000 is Ex. DW3/6; certified copy of one more complaint dated 19.06.2000 is Ex. DW3/7; Certified copy of the complaint dated 20.06.2000 is Ex. DW3/8; Certified copy of the complaint dated 10.07.2000 to the Commissioner of Police is Ex. DW3/9 and Certified copy of the complaint dated 10.07.2000 to the DCP is Ex. DW3/10.
28. In the crossexamination, DW3 has stated as under: "I am working as a private driver and also I deal in the business of supplying the milk. I am educated upto 5th standard. I cannot read or write English language. I am aware about the contents of my affidavit Ex. D3 as the same Suit No. 174/14 (Old Suit No. 212/08) Page No. 20/47 was read over to me by my Advocate in Hindi. I came to know about the pendency of the present suit in the year 2002. I have been residing in H. No. 39, Gali no. 3, Shastri Park, Delhi since 1970. My date of birth is 5th of November 1978. I was born in H. No. H42, Gali no. 3, Shastri Park, Delhi which is situated just in front of H. No. 39, Gali no.3, Shastri Park, Delhi. My grandfather started residing in Delhi even prior to 1970. I do not know any person by the name of Sh. Bhoru Singh. Vol. But my grandfather was acquainted with the said person. Sh. Bhoru Singh was a friend of my grandfather but he was not any relative of my grandfather. I do not know about the children of Sh. Bhoru Singh. I am not aware as to where the children of Sh. Bhoru Singh reside. I do not have any documentary proof to show my residence at the suit property prior to 22.06.2000. I have not placed on record any documentary proof to show my possession over the suit property prior to 22.06.2000. It is wrong to suggest that I took over the forcible possession of the suit property on 22.06.2000 and that is why, I do not have any documentary proof of my possession over the suit property prior to 22.06.2000. I am not aware about any suit instituted by one Sh. Shakeel Ahmad against my father. My Suit No. 174/14 (Old Suit No. 212/08) Page No. 21/47 father had instituted a suit against Sh. Shakeel Ahmad and the plaintiff Sh. Surbir Singh. I am not aware about the reply filed by defendant no. 3 and 4 in suit bearing no. 1442/2000 titled as Madan Pal Khari Vs. Shakeel Ahmad. Certified copy of the said reply along with the reply with affidavit is collectively exhibited as Ex. DW3/P1. I am not aware as to whether Sh. Bhoru Singh expired on 02.05.1956. I cannot admit or deny the suggestion that Sh. Bhoru Singh expired on 02.05.1956. It is wrong to suggest that a Kalandera U/s 107/150 of CrPC was lodged against my father with PS Seelampur with respect to forcible possession over the suit property on 21.06.2000.
I do not know any persons by the names of Sh.
Dharampal s/o Sh. Ram Chander, Sh. Laxman S/o Sh.
Bhoru, Sh. Ram Pal S/o Sh. Nathu and Sh. Om Pal S/o Sh.
Rattan Singh. Again said, the witness states that he knows Sh. Ram Pal as he had come to depose as a witness in Karkardooma Courts. I do not remember the name of the Ld. Presiding Officer in whose Court, the said case was pending. I do not remember the title of the case in which the said Sh. Ram Pal had come to depose as a witness. I do not exactly remember the date, Suit No. 174/14 (Old Suit No. 212/08) Page No. 22/47 month or year when Sh. Ram Pal had come to depose as a witness. Vol. But he had come to depose as a witness three years back.
It is correct that the above said four persons namely Sh. Dharampal s/o Sh. Ram Chander, Sh. Laxman S/o Sh. Bhoru, Sh. Ram Pal S/o Sh. Nathu and Sh. Om Pal S/o Sh. Rattan Singh were the owners of the suit property. I cannot admit or deny the suggestion that the above said four persons sold off the suit property to the plaintiff no. 1 in the present suit on 20.01.1989. It is wrong to suggest that the plaintiffs were in possession of the suit property from 20.01.1989 till 22.06.2000. It is wrong to suggest that the plaintiffs had erected a boundary wall, affixed a gate and put their own lock over the suit property prior to 22.06.2000. It is wrong to suggest that I myself and my father took over the forcible possession of the suit property and tethered our buffaloes in the suit property on 22.06.2000. It is wrong to suggest that even prior to 22.06.2000 when the plaintiffs were getting constructed their boundary wall over the suit property, we were putting obstacles therein. Vol. The boundary wall was there since the times of my grandfather.
I know Sh. Ram Bharose Sharma s/o Sh. Ganga Suit No. 174/14 (Old Suit No. 212/08) Page No. 23/47 Swaroop Sharma because he is a resident of the same gali in which I reside but I do not know any person by the name of Sh. Kamal Kishore s/o Sh. Chander Pal. It is wrong to suggest that Sh. Kamal Kishore and Sh. Bharose Sharma had deposed before the Police on 21.06.2000 that I myself in collusion with others was taking over the forcible possession over the suit property.
I do not know any person by the name of Sh.
Shakeel Ahmad. Vol. I have never seen him. Sh. Shakeel Ahmad had come to the Court during the pendency of the suit at Karkardooma Courts but I had not met with him and that is why, I have stated that I do not know Sh. Shakeel Ahmad. Sh. Shakeel Ahmad was not a friend of my father. It is wrong to suggest that the suit titled as Sh. Shakeel Ahmad Vs. Madan Lal Khari was a collusive suit which was got instituted by my father through Sh. Shakeel Ahmad. It is wrong to suggest that in that suit, it was stated that Sh. Shakeel Ahmad was the owner and Sh. Madan Lal Khari was the tenant.
On 04.06.2000, police officials did not give any beatings to my father in my presence. It is wrong to suggest that all the police complaints such as the complaint dated Suit No. 174/14 (Old Suit No. 212/08) Page No. 24/47 19.01.2000, the complaint dated 20.06.2000 and the complaint dated 10.07.2000 are false and fabricated. In my presence, Sh. Shakeel Ahmad did not take the forcible signatures of my father Sh. Madan Pal Khari on certain blank papers and printed rent receipts and on some written papers on 05.06.2000. To my knowledge, this never happened. To my knowledge, no beatings were given to my father on 04.06.2000 by the police officials. It is wrong to suggest that the suit titled as Sh. Madan Pal Khari Vs. Sh. Shakeel Ahmad & ors. was a false and fabricated suit. It is wrong to suggest that the report of Ld. LC, Ex. DW3/2 on record was got prepared falsely in the absence of the plaintiffs without any prior notice to the plaintiffs. It is wrong to suggest that the plaintiff no. 1 is the owner of the suit property. It is wrong to suggest that I myself along with others are in unauthorized occupation of the suit property. I do not have any documentary proof to show my title over the suit property. It is wrong to suggest that I have filed a false affidavit or that I am deposing falsely".
29. The defendants have further examined Sh. Ram Pal as DW4 and this witness, in his examinationinchief has stated that he has not sold the plot in question to the plaintiff no.1. DW4 further states that he Suit No. 174/14 (Old Suit No. 212/08) Page No. 25/47 has not given the possession of the suit property to the plaintiffs and he has not put his thumb impression on Ex.PW1/2, Ex.PW1/3, Ex.PW1/4, Ex.PW1/6 and Ex.PW1/7. DW4 further states that the plaintiffs had not constructed any boundary wall or the plaintiff's were not in possession of the suit property as per his knowledge. DW4 further states that he does not know about the thumb impressions of other persons on the said documents. DW4 further states that he has not received any amount from any of the plaintiffs towards the sale consideration of the suit property. DW4 further states that he does not know any of the plaintiffs.
30. In the cross examination, DW4 states as under :
"Sh. Dharampal is my cousin brother i.e son of my real Chacha Sh. Ramchander. Sh. Ompal is my another cousin i.e son of my another Chacha Shri Ratan. Sh. Laxman is my real Chacha. Sh. Dharampal used to look after the entire transaction of the plot in question. I was working in Burari in the electricity department as Senior Mistri. Sh. Dharampal used to tell me about the quarrel of the said plot when we used to go to Karkardooma Court. The name of Dharampal was not recorded in Khatauni. Again Said, the name of Sh. Dharampal was recorded in Khatauni. The entire rights of looking after the entire properties were with Sh. Dharampal.
Suit No. 174/14 (Old Suit No. 212/08) Page No. 26/47
We are two brothers. The name of my brother is Raju @ Rajpal. I do not know as to whether my brother Rajpal had visited the office of the Sub Registrar alongwith Sh. Dharampal. I do not know any person by the name of Sh. Bhure Lal. I also do not know any person by the name of Sh. Bhure Singh or Sh. Bhuru. Vol. Sh. Bhoru was my grand father. It is correct that Sh. Bhoru was the owner of the suit property. At the time of the death of Sh. Bhoru I was about 810 years of age. As on date, I am 70 years old. I was born in village Ghonda and in the year 1989, as well , I was residing in the said village. As on date as well, I reside in the same village. I have never visited the suit property. I do not know as to whom the suit property has been sold because I have never visited the suit property. Sh. Dharampal alongwith my uncle Sh. Laxman used to deal in the sale and purchase of properties. It is wrong to suggest that I used to put my thumb impression at the asking of Sh. Dharampal and Sh. Laxman. Volt. Neither they asked me nor I put my thumb impression.
I am a summoned witness. I have not brought the summons today in the court which were received by me. I do not know the defendant who is present today in the Suit No. 174/14 (Old Suit No. 212/08) Page No. 27/47 court.
I have visited Karkardooma Courts 23 times alongwith Sh. Dharampal in connection with some FIR u/s 452, 480 of the IPC. It is wrong to suggest that during the proceedings of the said FIR and during my visits to Karkardooma Courts , Sh. Dharampal used to tell me that the suit property was sold to the plaintiffs herein by him. Sh. Dharampal never told me that he had taken an amount of Rs. 52000/ from the plaintiffs. It is wrong to suggest that the suit property was sold to the plaintiffs by me. It is wrong to suggest that I am deposing falsely at the instance of the defendant".
31. The next and the last witness examined by the defendants is Sh. Madan Gopal i.e. DW5. DW5, in his examinationinchief, states that he does not have any knowledge as to whether the suit property was sold to the plaintiff no.1 or as to whether the possession thereof was delivered to the plaintiffs or not. DW5 further states that his father used to sign on the documents. DW5 further states that it is not in his knowledge as to whether Ex.PW1/2, PW1/3, PW1/4, PW1/6 and PW1/7 were executed by his father. DW5 further states that no money was taken by his father in his presence or in his knowledge. DW5 further states that to his knowledge, the plaintiff's were never in possession of the suit premises. Suit No. 174/14 (Old Suit No. 212/08) Page No. 28/47 DW5 further states that the suit property was a vacant wall and no boundary wall was constructed by the plaintiffs.
32. In the cross examination, DW5 states that his father passed away in the year 1999. DW5 further states that his father used to sign normally but, however, sometimes, used to put his thumb impression. DW5 further states that his father did not use to agree with Sh. Dharam Pal, who was his cousin brother. DW5 further states that Sh. Dharam Pal expired in January, 2008. DW5 further states that he used to visit the suit property since his childhood. DW5 further states that he does not remember as to when his grand father Sh. Bhoru expired. DW5 further states that the suit property is in possession of Sh. Madan Pal Khari. DW5 further states that Sh. Madan Pal Khari expired in the year 2007. DW5 further states that he cannot identify the thumb impressions of his father, if shown to him. DW5 denies the suggestion that Sh. Madan Pal Khari had trespassed in the suit premises.
33. I have carefully gone through the entire material available on record and heard the rival submissions of both the Ld. Counsels for the parties. Ld. Counsel for the plaintiffs have also filed on record the written final arguments. I have given my thoughtful consideration to the written final arguments filed on record by the plaintiffs as well.
34. My issuewise findings on the abovesaid issues is as under: Suit No. 174/14 (Old Suit No. 212/08) Page No. 29/47
Issues No.1 :
35. The plaintiffs in para no. 16 of the plaint have stated that the value of the suit for the purposes of the Court fees and jurisdiction has been assessed at Rs. 3,10,000/ and appropriate court fees thereon, have been paid. In the written statement filed on record, the defendants have taken the stand that the circle rate of the properties in the area where the suit property is situated is Rs. 16,000/ per sq. meter and as such, the value of the suit property is more than Rs. 35 lacs.
36. The plaintiffs in the written final arguments have argued that the suit property was purchased in the year 1989 for a sum of Rs. 52,000/. There is a registered receipt to this effect in the form of Ex.PW1/7 on record. The present suit has been filed in the year 2008. The plaintiffs has valued the suit as Rs. 3,10,000/. The plaintiffs have argued that it can be safely presumed that the value of the suit property was enhanced from Rs. 52,000/ to Rs. 3,10,000/ from the year 1989 to the year 2008. If the evidence led by the parties is carefully gone through, it becomes evidently clear that no cogent and reliable evidence has been led by the defendants to prove that the value of the suit property is more than Rs. 35 lacs. Moreover, this aspect of the matter has not been stressed at all at the time of the final arguments by the Ld. Counsel for the defendants. As such, I am of the opinion that the defendants have miserably failed to prove that the suit has not been properly valued for the Suit No. 174/14 (Old Suit No. 212/08) Page No. 30/47 purposes of the Court fees and jurisdiction. Accordingly, issue no.1 is decided in favour of the plaintiffs and against the defendants. Issue No. 2 :
37. The onus to prove this issue has been again placed upon the defendants. The plaintiffs have filed the present suit for declaration and possession on the ground that the plaintiff no.1 is the owner of the suit property on the basis of the documents GPA, Agreement to sell, affidavit, registered receipt and Will etc Ex.PW1/2 to Ex.PW1/8 on record having purchased the suit property on 20.01.1989 and the defendants are the rank trespassers therein. The defendants have taken the plea that they are the owners of the suit property by way of adverse possession and they have been in continuous and uninterrupted possession of the suit property since the year 1970. The plaintiffs in the written final arguments have argued that the plaintiffs were forcibly dispossessed from the suit property in the year 2000 by Sh. Madan Pal Khari (the husband of the defendant no.1 and father of the defendant nos. 2 to 7). During the course of the final arguments, Ld. Counsel for the defendants has not stressed this aspect of the matter at all. No evidence has been led by the defendants to show as to how the suit is liable to be dismissed U/o 7 Rule 11 of the CPC. Accordingly, to my mind, the defendants have utterly failed to prove this issue in their favour and as such, issue no.2 is decided Suit No. 174/14 (Old Suit No. 212/08) Page No. 31/47 against the defendants and in favour of the plaintiffs. Issues No. 3, 4 , 5 and 6 :
38. All these issues are taken up together as the same are connected interse and overlap each other. Issue no.3 pertains to the plea of the defendants as contained in the written statement whereas the rest of the issues i.e issues no. 4, 5 and 6 relate to the prayer clause of the present suit. The onus to prove issue no.3 has been placed upon the defendants whereas the onus to prove issues no. 4,5 and 6 has been placed upon the plaintiffs.
39. In the written final arguments, Ld. Counsel for the plaintiffs has argued that an FIR bearing no. 280/2000, U/s 323/452/34 IPC was lodged against Sh. Madan Pal Khari for trespassing in the suit property.
It has been further argued that the plaintiffs are the owners of the suit property by virtue of the documents Ex.PW1/2 to Ex.PW1/8 on record. It has been further argued that the case of the defendants is totally demolished if the cross examination of DW3, DW4 and DW5 is carefully gone through. It has been further argued that Sh. Madan Pal Khari claimed himself to be a tenant under Sh. Shakeel Ahmed in suit bearing no. 187/2000. It has been further argued that the plaintiffs have been able to prove their documents executed on 20.01.1989 including the Will dated 20.01.1989 Ex.PW1/8 on record. It has been further argued that the Suit No. 174/14 (Old Suit No. 212/08) Page No. 32/47 plaintiffs were dispossessed from the suit premises in June, 2000 and the plaintiffs have been able to prove that the defendants are the trespassers and unauthorized occupants in the suit property. It has been further argued that the plaintiffs have been able to prove their case in its entirety. Ld. Counsel for the plaintiffs have relied upon the an authority cited as 188(2012) DLT 538 titled as Ramesh Chand Vs. Suresh Chand and Anr. wherein it has been held as under :
"3. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court however reiterated that rights which are created pursuant to Section 53 A of the Transfer of the Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will(para 14). therefore, no doubt a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53 A of the Transfer of the Property Act, 1882, Section 202 of the Contract Act, 1872/ There also Suit No. 174/14 (Old Suit No. 212/08) Page No. 33/47 takes place devolution of interest after the death of the testator in terms of a Will."
"8. Great stress was laid on behalf of the appellant to the fact that the respondent No. 1/ plaintiff had failed to prove the Will Ex. PW1/5 in accordance with law inasmuch as no attesting witnesses were examined. Reliance is placed on behalf of the appellant on the judgment of the Supreme Court in the case of Kahibai & Anr. v. Parwatibai & Ors., 1995 IV AD S.C. (C) 41 to argued that the Will has to be proved in terms of the provisions of Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872 by calling of the attesting witnesses and if the same is not done merely because there is an exhibit mark given to the Will, the same cannot be said to be proved.
In my opinion, the judgment of the Supreme Court in the case of Kashibai & Anr. (supra), and various other judgments which deal with the issue of requirement of a Will having to be proved by summoning of an attesting witness, are judgments given in those cases where there are inter se disputes between the legal heirs of a deceased testator and the validity of the Will is questioned in those circumstances. Observations in the said judgments cannot Suit No. 174/14 (Old Suit No. 212/08) Page No. 34/47 have application to be facts of those cases where the disputes with regard to Will are not classical disputes between the legal heirs of the deceased testator and the Will is an instrument which really furthered an intent to transfer the rights in an immovable property by the testator to the beneficiary. I may note that in the present case, there is absolutely no cross examination at all on behalf of the appellant when the registered Will was proved and exhibited in the statement of the respondent No. 1/ plaintiff as PW1. Once there is no crossexamination, in the cases such as the present, which are different than the classical disputes inter se the legal heirs of a deceased testator, I would feel that the Will should be held to be a proved document inasmuch as the object of the Will in cases such as the present was really to transfer rights in an immovable property after the death of the testator. Further, I may note that the observations with respect to Will having to be very strictly proved by calling the attesting witness are in probate cases where the judgment is a judgment in rem whereas in the present case the judgment on the basis of ownership rights devolving upon the respondent No. 1/ plaintiff under a Will will not be a judgment in rem but only a judgment interse the parties. Suit No. 174/14 (Old Suit No. 212/08) Page No. 35/47 Also another aspect to be borne in mind is that besides the two sons of the deceased Sh. Kundan Lal, who were the plaintiff and defendant no.1 in the suit, the other legal heirs of the deceased Sh. Kundan Lal were very much in knowledge of the present litigation but they never chose to add themselves as parties. Whereas the other son i.e the brother of the parties to the present suit, Sh. Ram Swaroop deposed in favour of respondent no.1/plaintiff as PW2, the only daughter of the deceased Sh. Kundan Lal namely Smt. Krishna deposed in favour of the appellant/defendant no.1 as DW2. Therefore, all the interested parties, who would claim any benefit in the suit property, were aware of the subject litigation.
"12. In view of the aforesaid facts and the validity of the documents, being the power of attorney and the Will dated 16.05.1996, the respondent no.1/plaintiff would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the appellant/defendant no.1. In fact, I would go to the extent saying that by virtue of para 14 of judgment of the Supreme Court in the case of Suraj Suit No. 174/14 (Old Suit No. 212/08) Page No. 36/47 Lamps & Industries Pvt. Ltd.(supra) taken with the fact that Sh. Kundan Lal has already died, the respondent no. 1/plaintiff becomes an owner of the property by virtue of the registered Will dated 16.05.1996. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement right to the possession of the property than qua the person who is in actual physical possession thereof. The facts of the present case show that the respondent no.1/plaintiff has undoubtedly better entitlement/title/rights in the suit property so as to claim possession from the appellant/defendant no.1/brother. I have already held above that the appellant/defendant no.1 miserably failed to prove there there was any partition as alleged of the year 197 whereby the suit property allegedly fell to the share of the appellant/defendant no.1. In fact, the second reason for holding the appellant to be unsuccessful in establishing his plea of partition is that the appellant failed to lead any evidence as to the other two properties being the property no. 290, Ambedkar Basti, Delhi and the second property being the property adjoining the property no. 290, Ambedkar Basti, Delhi as having belonged to the father Sh. Suit No. 174/14 (Old Suit No. 212/08) Page No. 37/47 Kundan Lal."
40. Ld. Counsel for the plaintiffs has further relied upon an authority cited as 2013(138, DRJ 99) para no. 34 titled as Bharat Kumar & Ors. Vs. Ashok Sahdev & Ors. wherein it has been held as under :
"34 The Division Bench of this Court in Asha M. Jain Vs. Canara Bank 94(2001) DLT 841:2002 (61) DRJ 101(DB) had held that judicial notice has to be taken of the practice prevalent in the city of Delhi of sale/purchase of leasehold properties through the medium of Agreement to Sell coupled with the delivery of possession in part performance, thereof, powers of attorney, Wills etc. Though the said judgment of the Division Bench of this Court has been expressly overruled by the Supreme court in Suraj Lamp & Industries P. Ltd. Vs. State of Haryana 2012(1) SCC 656 but para 26 of the said judgment clearly makes the judgment of the Supreme Court prospective and the Supreme Court has clarified that judgment is not intended to unsettle transactions which had taken place in the past. The transaction in the present case is of much prior to the date of pronouncement of the judgment in Suraj Lamp & Industries P. Ltd and of the time when the view as pronounced by the Suit No. 174/14 (Old Suit No. 212/08) Page No. 38/47 Division Bench of this Court in Asha M. Jain was prevalent. It has thus to be held that the words "any transaction in which property is transferred" in Section 2(a) of the Benami Act would include transfer of a date prior to the pronouncement in Suraj Lamp & Industries P. Ltd. through the medium of Agreement to Sell coupled with delivery of possession in part performance, Will, Power of Attorney etc."
41. Whereas, Ld. Counsel for the defendants, on the other hand has argued that the documents Ex.PW1/2 to Ex.PW1/8 have not been proved by the plaintiffs. It has been further argued that no witness to the documents has been summoned or examined and as such, the execution of the documents has not been proved. It has been further argued that the plaintiffs have also failed to prove their possession over the suit property. It has been prayed that the suit of the plaintiffs be dismissed.
42. In the light of the pleadings and evidence led by the parties, the vital to be considered by this Court is as to whether the plaintiffs have been able to prove by way of cogent and reliable evidence that the plaintiff no.1 became the owner of the suit property by virtue of the documents Ex.PW1/2 to Ex.PW1/8 on record. The sole defence of the defendants as contained in the written statement is that they are the Suit No. 174/14 (Old Suit No. 212/08) Page No. 39/47 owners of the suit property by way of the adverse possession. As such, this Court has to consider as to whether the defendants have been able to prove the plea of adverse possession by way of cogent and reliable evidence.
43. The defendants have taken the stand that Sh. Rumal Singh (father in law of defendant no.1 and grand father of defendant nos. 2 to 7) was given the suit property by his friend Sh Bhoru Singh, who was having many plots in Delhi in the year 1970. The defendants have taken the plea that since the year 1970, the defendants or their predecessors in interest have been in continuous and physical possession of the suit property. The filing of the suit bearing no. 140/2006 titled as Sh. Madan Pal Khari Vs. Shakil Ahmed and ors. is not in dispute. The defendants themselves have placed on record certified copy of the evidence by way of affidavit of Sh. Madan Pal Khari in that suit. In para no.4 of the said affidavit Ex.DW1/1 on record, Sh. Madan Pal Khari has stated that the suit property was given to his father Sh. Rumal Singh as a gift for maintaining his family members. It has been further stated in the said affidavit that no written document was executed in this regard. The settled law is that a gift of an immovable property is compulsorily required to be registered. As such, there cannot be an oral gift of an immovable property. As such, I am of the opinion that the plea of the oral gift as contained in the said affidavit of Sh. Madan Pal Khari is not Suit No. 174/14 (Old Suit No. 212/08) Page No. 40/47 tenable at all. Needless to mention that Sh Madan Pal Khari was the husband of the defendant no.1 and the father of the defendant nos. 2 to 7. The plea of the oral gift has not been taken by the defendants in the written statement in the present suit but Ex.DW1/1 is a document placed on record by none other but the defendants themselves.
44. Now, coming to the documents Ex.PW1/2 to Ex.PW1/8 on record filed by the plaintiffs and to the plea of adverse possession which is the sole plea taken by the defendants in the written statement, the consistent stand of the defendants is that since the year 1970, the defendants are in continuous and uninterrupted possession of the suit property. The defendants have examined defendant no.2 Sh. Hem Prakash as DW3 and in his cross examination, he has categorically stated that he has no documentary proof to show his residence at the suit property prior to 22.06.2000 and he has not placed on record any documentary proof to show his possession over the suit property prior to 22.06.2000. Similarly, DW3 has stated that he has no documentary proof to show his title over the suit property. If the cross examination of DW3 is carefully gone through, it becomes evidently clear that the same is sufficient to demolish the entire stand of the defendants.
45. Sh. Ram Pal is one of the executant of the documents in favour of the plaintiff no.1. The said Sh. Ram Pal has been examined as DW4 by the defendants. If the cross examination of DW4 is carefully Suit No. 174/14 (Old Suit No. 212/08) Page No. 41/47 gone through, to my mind, it becomes apparently clear that instead of supporting the case of the defendants, the said witness has supported the case of the plaintiffs in its entirety despite the fact that the said witness is a witness of the defendants. In the examinationinchief, the said witness states that he has not put his thumb impression on the documents Ex.PW1/2 to Ex.PW1/7. This witness has further stated that the suit property was not sold to the plaintiff no.1 and the possession thereof was also not given to the plaintiffs. But in the crossexamination, the said witness clear admits that Sh. Dharam Pal is his cousin brother and it was Sh. Dharam Pal, who used to look after the entire transaction of the plot in question. DW4 in the cross states that the name of Sh. Dharm Pal was not recorded in the Khatoni but in the same breath, in the very next line, the said witness states that name of Sh. Dharam Pal was recorded in Khatoni and the entire rights for looking after the entire properties were with Sh. Dharam Pal. In the crossexamination, DW4 has further stated that he has never visited the suit property and he does not know as to whom the suit property was sold. In the same crossexamination, DW4 states that Sh. Dharam Pal used to tell him that the suit property was sold to the plaintiffs.
46. Defendant no.2 i.e. DW3 as well, in the crossexamination admits it to be correct that the four persons namely Sh. Dharam Pal, Sh Laxman, Sh. Ram Pal and Sh. Om Pal were the owners of the suit Suit No. 174/14 (Old Suit No. 212/08) Page No. 42/47 property. Defendant no. 2 does not deny that the suit property was not sold to the plaintiff no.1 on 20.01.1989. Rather, DW3 states that he cannot admit or deny the suggestion that the said four persons sold out the suit property to the plaintiff no.1 on 20.01.1989.
47. PW1 has testified in his examinationinchief by way of the affidavit about the execution of the documents Ex.PW1/2 to Ex.PW1/8 and the putting of the thumb impressions by the executants of the said documents. In the crossexamination as well, the testimony of PW1 is not shaken at all. Ld. Counsel for the defendants has argued that the documents Ex.PW1/2 to Ex.PW1/8 have not been proved by the plaintiffs. I am of the opinion that the above said submission of the Ld. Counsel for the defendants is without any substance in the light of the crossexamination of DW3 and DW4. I have no hesitation to hold that the crossexamination of DW3 and DW4 has supported the case of the plaintiffs and not the case of the defendants. DW4 has deposed diametrically opposite to his stand as contained in his examinationin chief. I am also of the opinion that the testimony of DW5 as well, has not been able to support the case of the defendants at all.
48. It is true that Ex.PW1/2 to Ex.PW1/7 have been executed by Sh. Dharam Pal and other executants as well but Ex.PW1/8 i.e. the Will has been executed only by Sh. Dharam Pal but in the crossexamination, DW4 has categorically admitted that it was Sh. Dharam Pal who was Suit No. 174/14 (Old Suit No. 212/08) Page No. 43/47 looking after the entire transaction of the plot in question and the entire rights of looking after the entire properties were with Sh. Dharam Pal.
49. Further more, to my mind the ratio of the authority titled as Ramesh Chand Vs. Suresh Chand and Anr. cited as 188(2012) DLT 538 is squarely applicable to the facts and circumstances of the present suit. The Hon'ble High Court of Delhi has dealt with the ratio of the authority of the Hon'ble Supreme Court titled as Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana in the abovestated authority titled as Ramesh Chand Vs. Suresh Chand & Anr. The Hon'ble High Court of Delhi has categorically held in the above stated authority that the object of giving validity to a power of attorney given for consideration even after the death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had the elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of the attorney. In the case in hand as well, the dispute about the Will is not a dispute interse between the legal heirs of the deceased testator. As such, I am of the opinion that the requirement of the proof of a Will by the attesting witnesses is not to be insisted upon as has been held by the Hon'ble High Court of Delhi in the abovesaid authority. I have no hesitation to hold that on the basis of the documents, certainly the plaintiff no.1 has a better Suit No. 174/14 (Old Suit No. 212/08) Page No. 44/47 title whereas the case of the defendants is that of no title.
50. Further more, it has to be seen that the documents in the case in hand are dated 20.01.1989. In the authority titled as Bharat Kumar and Ors. Vs. Ashok Sehdev and Ors. cited as 2013(138) DRJ 99, it has been categorically held by the Hon'ble High Court of Delhi that para no. 26 of the judgment cited as 2012 (1) SCC 656 clearly states that the judgment is prospective and not retrospective and the said judgment is not intending to unsettle transactions which had taken place in the past.
51. So far as the Will Ex.PW1/8 is concerned, there is no dispute that Sh. Dharam Pal has expired. As such, I am of the opinion that plaintiffs have rightly argued that the Will Ex.PW1/8 has come into operation.
52. PW1 has filed on record the site plan Ex.PW1/10. The defendants have not filed on record any site plan of their own. The settled law is that if the defendants dispute the site plan filed by the plaintiffs, then, it is incumbent upon the defendants to file a site plan of their own, in the absence of which, the site plan filed by the plaintiffs has to be taken as correct.
53. Further more, it has to be seen that in suit bearing no. 140/2006, in the evidence by way of affidavit, Ex.DW1/1 on record, late Sh. Madan Pal Khari had stated that the defendant no.1 there in i.e. Shakil Ahmed was having forged and fabricated documents. In the present suit Suit No. 174/14 (Old Suit No. 212/08) Page No. 45/47 as well, the defendants have stated that the documents filed by the plaintiffs are forged and fabricated but no relief of cancellation or declaration with respect to the said documents has been sought for by the defendants.
54. I have no hesitation to hold that the testimony of PWs is more reliable and trust worthy as compared to the testimony of DWs, if weighed, on the scale of preponderance of probabilities which is the litmus test in civil cases.
55. In the light of the abovesaid discussion, I am of the opinion that the defendants have failed to prove the plea of the adverse possession. Accordingly, issue no.3 is decided against the defendants. I am also of the opinion that the plaintiff no.1 is entitled to the declaration as prayed for by the plaintiffs in the plaint on the basis of the Will Ex.PW1/8 on record. I am also of the opinion that the plaintiffs are entitled to the decree of the possession and to the decree of permanent injunction as well. Issues no.4,5 and 6 are accordingly decided in favour of the plaintiffs and against the defendants.
Relief :
56. In the light of my findings upon the forgoing issues, I hereby pass a decree of possession in favour of the plaintiff and against the defendants with respect to the suit property as shown in red colour in the Suit No. 174/14 (Old Suit No. 212/08) Page No. 46/47 site plan Ex.PW1/10 on record filed by the plaintiffs. Plaintiff no.1 is also declared to be the owner of the suit property as shown in red colour in the site plan Ex.PW1/10 on record. A decree of permanent injunction is also passed in favour of the plaintiffs and against the defendants restraining the defendants and their agents etc., from creating any third party interest in the suit property. Costs of the suit are also awarded in favour of the plaintiffs.
Decree sheet be prepared accordingly by the Reader. File be consigned to Record Room after due compliance.
Announced in the open court (RAJ KUMAR)
on this 15th day of July 2014. ADJ17 (Central)
Tis Hazari Courts, Delhi.
Suit No. 174/14 (Old Suit No. 212/08) Page No. 47/47